• Caleb Meriwether

A Hot Mess - Duty to Defend, Scope of Employment, and Negligent Hiring

In Ellington v. Cajun Operating Company, et al, Tennessee's appellate court was called upon to address a hot mess of a situation involving chicken, roaches, grease-slinging and some insurance issues.

In Ellington, Jenieka Ellington and her boyfriend, Prentiss Durr, (collectively the "Plaintiffs," even though it doesn't appear Durr had a claim) purchased some food in Memphis, Tennessee from a Church's Chicken fast food restaurant. At some point after leaving the drive-through, roaches were discovered in their food. Details seem murky, but Plaintiffs returned to the restaurant to have a conversation with the manager, who happened to be Tammara Sprouse (the "Manager"). The interaction between the Plaintiffs and the Manager quickly became hostile, some yelling ensued, 911 was called, and there was a physical altercation between Durr and the Manager. They were apparently separated.

The timeline is vague but the Plaintiffs left the building with the Manager following close behind. As the Plaintiffs were entering their vehicle, the Manager threw what was determined to be a bucket of hot grease onto to Ms. Ellington. She was treated for her injuries and we certainly hope she has made a full recovery.

A few insurance ticklers for your thoughts. Church's insurer had a duty to defend the case, which they apparently did successfully. Was Church's ultimately responsible for the damages? No. The Court of Appeals determined that the Manager's acts were so far outside of her scope of employment that Church's could not be legally liable for the acts of its employee. While not determinative, it helped that Church's employee handbook expressly prohibited physical confrontation with customers. You'll of course recall that most CGL policies only cover legal liability - here there could be none because the acts were simply too far removed from the scope of employment.

But there was a second lesson to learn. Much of the opinion focused on the Manager's background, the hiring procedure, investigations, etc. Why is this important? Because one of the allegations against Church's was that they negligently hired a dangerous person. Without much detail, the opinion suggests the Manager's social media page had some violent images or suggestions on it. But the Court noted that Church's had a formal intake system, including questions about past crimes, and that background checks were ordered, reviewed, and did not reveal anything of concern about the Manager.

A few takeaways - employers are potentially liable for the acts of their employees; handbooks can outline those acts that are not within the scope of employment and thus provide some protection to employers; and, lastly background checks help defend negligent hiring claims.

LEGAL JARGON DISCLAIMER: The foregoing is not legal advice. Even if you construe it that way, it’s probably only worth what you paid for it. I am an attorney but am not yours.